NALQ v Minister for Immigration - [2003] FMCA 455

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALQ v MINISTER FOR IMMIGRATION

[2003] FMCA 455

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant accepted invitation to attend RRT hearing but failed to attend due to claimed illness – whether refusal of an adjournment by the RRT was procedurally fair – no reviewable error found.

Migration Act 1958 (Cth), ss.425, 426A

Algama v Minister for Immigration [2001] FCA 476
Hossain v Minister for Immigration [2000] FCA 842
Minister for Immigration v Capitly [1999] FCA 193
Sreeram v Minister for Immigration [2001] FCA 53
Xiao v Minister for Immigration [2000] 1472

Applicant:

NALQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ696 of 2003

Delivered on:

9 October 2003

Delivered at:

Sydney

Hearing date:

9 October 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr R Wilson

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ696 of 2003

NALQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 6 February 2003 and handed down on 27 February 2003. The applicant is a citizen of Bangladesh and submitted a claim for a protection visa on the basis of asserted political persecution in Bangladesh. The general background is set out accurately in paragraphs 1 through to 5 of the respondent's written submissions prepared by Mr Reilly for the Minister. I adopt those paragraphs for the purposes of this judgment:
On 27 February 2003 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant applied for the visa on 5 July 2001. On 25 August 2001 the delegate refused the visa. The applicant applied to the RRT for review on 14 September 2001.
On 20 December 2002 the RRT wrote to the applicant informing him that it was unable to make a favourable decision on the information before it, and inviting him to a hearing on 29 January 2003. The applicant accepted the offer, but the day before the scheduled hearing his migration agent sought an adjournment on the basis of an operation the applicant was to undergo on 4 February 2003. The RRT rejected the adjournment in the absence of more satisfactory medical evidence, and records that none was forthcoming and that the applicant did not attend the hearing. In those circumstances the RRT [relied upon] s.426A(1) of the Migration Act 1958 (Cth) (“the Migration Act”) to proceed to make a decision without further notice to the applicant, as the RRT notes.
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a member of the Bangladesh Nationalist Party (BNP) and to have suffered beatings and false charges from members of the rival Awami League.
The RRT accepted that the applicant was a member of the BNP as he claimed, but was not satisfied that the applicant’s fears were well founded, noting that his claims of past persecution were general and lacked detail, that it had not been able to explore these claims with him due to his non-attendance at the offered hearing, and concluded that it was not satisfied that they had occurred. Further, the RRT found that even if the applicant had been persecuted in the past as he claimed, the fact that the BNP were now in power in Bangladesh, and independent country information concerning the availability of state protection in Bangladesh, would mean that the RRT was not satisfied that the applicant’s fears were well founded in any event.
The application filed in the Federal Court on 20 March 2003 and subsequently transferred to this Court for hearing raised several grounds of review. However, only the last ground of review in paragraph 8 was pursued in this hearing. That is, that the applicant was sick and that he notified the RRT but the RRT did not consider it. The applicant asserts that it has greatly affected the applicant in his effort to ensure justice. As explained by Mr Wilson at trial today, what this amounts to is an assertion that the decision by the RRT to proceed in the absence of the applicant was a breach of procedural fairness which vitiates the decision made by the RRT. I also understand Mr Wilson to be submitting that it was not open to the RRT to proceed in the absence of the applicant in reliance upon s.426A(1)(b) of the Migration Act.

The circumstances of the applicant's non-appearance are dealt with by the presiding member on page 69 of the court book. The presiding member states:
“ On 8 January 2003, the applicant replied to accept the offer of a hearing, indicating he would be accompanied by his adviser.
On 28 January 2003, the day before the hearing, a letter was received from the adviser, asking for an adjournment because the applicant was sick. To support the request the adviser provided copies of a Diagnostic Centre Request Form from Prince Alfred Hospital, Newtown, NSW. The form recorded a planned admission on 4 February 2003 for surgery and a two to three day admission, for repair of a left inguinal hernia. The Diagnostic Centre made the admission arrangements on 2 December 2002.
The Tribunal is obliged to determine matters referred to it economically and expeditiously. There are many cases to consider, hearing schedules are full and qualified interpreters in certain languages, like Bengali, are scarce. There are expenses incurred when a hearing is arranged, for example, in interpreter fees. For this reason requests for adjournment, particularly late requests, are carefully considered before approval.
In this case, the request for adjournment was not approved. The Tribunal was not satisfied that the medical information provided, which about future optional routine surgery precluded the applicant from attending the hearing, which he had accepted on 8 January, more than a month after the planned admission date was known to him. The applicant and the adviser were informed that, failing more satisfactory medical evidence of an inability to attend and give evidence, the hearing would proceed as planned. No further medical information was provided by or for the applicant either before the hearing or subsequent to it.
The applicant did not appear at the time and place laid down for the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before [it].”
The court book which also discloses (page 52) that the applicant's migration agent wrote a letter dated 28 January 2003, the day before the scheduled hearing, in which the agent stated:
“I write this letter in relation to the above named applicant who is sick and going for an operation on 4 February 2002. As such the applicant instructed me to ask the Tribunal to postpone the hearing.
Therefore, I request you to please provide a date for further hearing for the applicant. I enclose herewith Hospital document.
Should you have any queries regarding this matter please feel free to contact me on above address.”
There follows (court book, pages 53-55) the Royal Prince Alfred Hospital document referred to establishing the applicant was to be admitted for a hernia operation planned for 4 February 2003. On pages 56 to 58 of the court book there is a facsimile cover sheet and following letter dated 29 January 2003, the date of the hearing, in which the applicant’s migration agent, Mr Haque set out a number of matters in support of the applicant's visa application. However, nothing further was said in that letter about the applicant's illness or his asserted inability to attend the RRT hearing.
Mr Reilly tendered a document from the electronic records of the RRT which I accepted as an exhibit (exhibit R1). This discloses that a RRT officer received a request to postpone the hearing via fax and forwarded it to the relevant case team. It also discloses that another officer rang the migration agent to say that the member would not postpone the hearing unless the applicant sent a medical certificate and noted that the applicant stated that he was unable to come to the hearing.
The applicant relies upon two affidavits in support of this application, one by himself and one by his migration agent. Both were cross-examined. The applicant states in his affidavit that when he accepted the invitation to attend the RRT hearing he did not think that his illness would prevent him from attending, but that later in January 2003 his condition got worse. He states that he was seeing two doctors, Dr Small and Dr Rothonis, every week at that time and that he was ill most of the time. He deposes that his mobility was increasingly inhibited by his illness.
The applicant states that he rang Mr Haque some days before the hearing and asked him to change the date of the hearing as he did not think that he could attend. Mr Haque agreed to do so. The applicant deposes that he was in serious pain in the day or two immediately preceding the hearing and found it difficult to move about. He deposes that Mr Haque contacted him at some stage to advise that the RRT would not change the hearing date. The applicant deposes that he was in pain and does not have clear recollection of when this occurred.
The applicant deposes that he again told Mr Haque that he was too sick to go to the hearing and that Mr Haque said that he would send a further letter to the RRT. The applicant attaches to his affidavit copies of two medical certificates, one from Dr Rothonis and one from Dr Small. The originals of those certificates were tendered in evidence (exhibits A1 and A2). In his certificate Dr Rothonis states on 30 September 2003 that:
“ The applicant was symptomatic from his hernia for some time prior to his operation on 4 February 2003 and was not able to work during that time. His hernia was initially diagnosed on 21 November 2002.”
Dr Small's certificate is undated, but under cross-examination, the applicant stated that he obtained it on the same day, 30 September 2003, as the other certificate. Dr Small states that the applicant had a hernia repair on 4 February 2003 at the Royal Prince Alfred Hospital. That is all he states.
The applicant was somewhat vague under cross-examination about when he first told his migration agent that he would be unable to attend the RRT hearing. He eventually stated that it was two or three days before the scheduled hearing. He stated that he telephoned this information to Mr Haque, his migration agent, and arranged for a friend to take the hospital document to Mr Haque to transmit to the RRT. Mr Haque corroborated that account when he was cross-examined. The applicant stated in cross-examination that when, on the day before the hearing, Mr Haque told him that an adjournment had been refused he asked Mr Haque to send a further letter to the RRT providing further information concerning his illness. He told me that he had ceased work as a kitchen hand in November 2002 due to his illness and that he had obtained medical certificates relating to his time off work. However, he told me that he did not provide these to Mr Haque or to the RRT and he does not know what he has done with them. He did not consider it necessary to provide them to Mr Haque or to the RRT in support of his adjournment request.
When he was cross-examined, Mr Haque stated that he could not recall the applicant instructing him to send a further letter to the RRT concerning his illness and his request for an adjournment. He stated that it became clear to him on the day before the hearing that the applicant would not be attending and that, in the circumstances, he and the applicant decided that it was prudent to send a written submission in support of the application for a visa (court book, pages 57-58).
It seems that Mr Haque did not understand and certainly cannot now recall the applicant as instructing him to provide further information to the RRT about his illness. Nevertheless, it does appear, and I so find, that the RRT did advise Mr Haque that further information and, in particular, a medical certificate would be required if there was to be an adjournment of the hearing. In those circumstances, it is surprising that Mr Haque did not make that clear to the applicant and it is surprising that the applicant did not make the effort to ensure that the medical certificates he said he had obtained to explain his absence from work were made available to the RRT. It may well have made a difference.
In his submissions, Mr Wilson took me to the decision of the Full Federal Court in Minister for Immigration v Capitly [1999] FCA 193. Mr Wilson submits that the principle to be derived from that case is that it is a question of fact for the Court to determine whether the applicant was unfit to attend the RRT hearing and that if the Court decides on the facts that the applicant was unfit to attend the decision of the RRT would be set aside on the basis of procedural unfairness or, alternatively, on the basis of a determination that the RRT was not entitled to proceed pursuant to s.426A(1)(b) of the Migration Act. Mr Wilson took me in particular to paragraph 35 of the decision in Capitly where their Honours stated:
“In our view an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the Tribunal refuses to grant an adjournment. This is not to say that the Tribunal is under any obligation to grant an adjournment on the basis of a mere allegation of sickness. There is no reason why the Tribunal must accept an allegation of this kind uncritically. It is entitled to require medical evidence if it believes that there is reason to doubt the truth of the allegation or otherwise to test it. An argument that so to hold would open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing is without foundation. It will be ultimately a factual matter whether, in all the circumstances, an applicant has been given a real opportunity to appear before the Tribunal to give evidence. In the event that there is any contest and no adjournment is given, the question is one which will fall to be decided by the Court, which will consider all the circumstances, including any factors which support the Tribunal's refusal to grant an adjournment application.”
Mr Wilson submits that on the evidence available I should conclude that the applicant was unfit to attend the RRT hearing on 29 January 2003 and that the decision of the RRT to proceed in the absence of the applicant in those circumstances was procedurally unfair and not open to the RRT under s.426A(1)(b).
Mr Reilly submits that the decision in Capitly needs to be put in its context. It was a decision on the former s.425 of the Migration Act which was subsequently amended in the light of the decision of the Full Federal Court. Decisions following the amendment, commencing with the decision of Wilcox J in Xiao v Minister for Immigration [2000] FCA 1472 which was approved in Sreeram v Minister for Immigration [2001] FCA 53, 106 FCR 578; and Algama v Minister for Immigration [2001] FCA 476, (2003) 194 ALR 638 are to the effect that s.425 as amended simply requires that an invitation be issued to an applicant to appear at an RRT hearing. Provided that an invitation is issued the requirements of s.425 are met. In this case, there is no doubt that an invitation had been issued to the applicant. The invitation was in fact accepted by the applicant. Accordingly, I find that s.425 was complied with.
The real issue in this case is whether the decision to proceed in the absence of the applicant was procedurally fair and whether the decision of the RRT was open to it under s.426A(1)(b). Given the particular context in which the decision in Capitly was made, I do not regard that decision as good authority for the purposes of resolving that question.
A decision which is relevant to resolving that question is the decision of Mansfield J in Hossain v Minister for Immigration [2000] FCA 842. That was a case in which, on the day before the scheduled hearing the applicant sent by fax a medical certificate and a short note to the RRT seeking an adjournment. The medical certificate provided a diagnosis of bronchitis and a mild fever and stated that the applicant was unfit for work on the day of the hearing as well as on two other days. An officer of the RRT had spoken to the applicant the day before the hearing about the applicant's asserted inability. The RRT had also spoken to the applicant's doctor. The RRT determined that it was not satisfied that the applicant was unable to attend the hearing.
Mansfield J decided that there had been no breach of either s.425(1) of the Migration Act, or s.426A(1). He decided that it was reasonably open to the RRT to determine on the facts before it that the explanation offered by the applicant for an inability to attend was insufficient and that, in the circumstances, the applicant was fit to attend and that the RRT could proceed in the absence of the applicant. His Honour said, commencing at paragraph 20:
“If the applicant has been invited under s.425(1) to appear before the Tribunal to give evidence, as was the case in this instance, and the applicant does not appear before the Tribunal on the day on which and at the time and place at which the applicant is scheduled to appear, an issue may arise as to whether the Tribunal can proceed whatever the reason for that non-appearance. The expression "does not appear" in s.426A(1)(b) may require further judicial exposition in other cases. For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend. He may be hospitalised. There may be many explanatory circumstances. No doubt the issue has not arisen because the Tribunal responds appropriately to true cases of hardship.
I am not to be taken as accepting that non-appearance, whatever the Tribunal may know about the reason for non-appearance, will suffice to enable the Tribunal to proceed to determine the review without taking further action to allow a visa applicant to appear before it. Whether it may do so under s.426A(1) may depend upon the circumstances. But I do not think it is necessary or appropriate to take the extra step which the applicant contended for, namely that the Tribunal must be satisfied that the visa applicant has abandoned the opportunity to appear to give evidence before the Tribunal can proceed under s.426A.
In my judgment, it then becomes a matter of considering the circumstances in which the Tribunal determined to proceed to assess whether the Tribunal complied with section 425(1) of the Act and section 426A(1) of the Act.”
With respect, I agree with His Honour's analysis concerning s.426A(1). In my view, the answer to the question of whether the RRT was entitled to proceed under s.426A(1)(b) of the Act is answered by the answer to the question of whether the decision of the RRT to refuse an adjournment was procedurally fair. If that decision was procedurally unfair the RRT should not have proceeded in the absence of the applicant in reliance upon s.426A(1)(b). On the other hand, if there was no procedural unfairness, the RRT was entitled to proceed in the absence of the applicant.
I do not accept Mr Wilson's submission that the issue of procedural fairness is to be determined on the basis of the evidence available to the Court, whether or not that evidence was available to the RRT. The question of procedural fairness needs to be answered on the basis of what the RRT did with the information available to it. The RRT had been told by the applicant's migration agent on the day before the hearing simply that the applicant was scheduled to undergo a hernia operation some days after the hearing and that the applicant was sick. The RRT did not regard that information as very persuasive. There was nothing to inform the RRT that the applicant was incapable of attending the RRT in advance of his operation. In those circumstances the RRT reasonably required some further information in order to support the request for an adjournment. At the very least, the RRT asked for a medical certificate. No medical certificate was provided.

No further information was provided to the RRT about the applicant's state of health. This was so, notwithstanding the applicant's statement that he asked his migration agent to provide that further information. The account of the migration agent is that he and the applicant decided that given that he would not be attending it would be necessary to put in a further written submission in order to attempt to deal with matters that the applicant would have dealt with if he had attended. The migration agent did not attend the hearing in the absence of the applicant because he saw no utility in doing so.
Given that the RRT was left uninformed of what the applicant's state of health may in fact have been at that time, it is not surprising that the RRT decided that insufficient reason had been advanced to adjourn the hearing and elected to proceed in the absence of the applicant. The simple information that the applicant was undergoing a hernia operation after the hearing and that he was sick was not, in my view, objectively persuasive enough to warrant an adjournment of the RRT hearing. I accept in that regard the reasons advanced by the presiding member.
Something more was reasonably required from the applicant and something more was requested from the applicant through his migration agent. Nothing more was provided. In those circumstances, it was not procedurally unfair for the RRT to decline to grant the adjournment and to decide to proceed in the absence of the applicant in reliance upon s.426A(1)(b) of the Migration Act. In the circumstances, I will reject the ground advanced by the applicant. I will dismiss the application.
On the question of costs, Mr Reilly submits that I should make an order in favour of the Minister fixed in the sum of $4,000 on a party/party basis. Mr Wilson submits that, taking into account the applicant's unfortunate circumstances at the time of the hearing, I should award a lesser sum. While I accept that the applicant would have been in some pain prior to his hearing before the RRT and that it was not unreasonable for him to request an adjournment, I have found that he did not take sufficient steps and that his migration agent did not take sufficient steps in order to provide material to the RRT which properly supported the adjournment request.
The applicant was wholly unsuccessful in the proceedings before this Court. In accordance with the general principle that costs follow the event it is appropriate that I make a costs order. I do not accept Mr Wilson's submission that the circumstances giving rise to the application call for a reduced costs order. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 October 2003